COURT OF APPEAL FOR ONTARIO
Goudge, MacPherson and Blair JJ.A.
BETWEEN:
Michael Paul Smith, an infant by his Litigation Guardian Paul Smith, Paul Smith and Maryanne Smith
Plaintiffs
and
Duncan MacRae, The London Health Sciences Centre, Tim Frewan, Company X Ltd., John Doe and Joe Smith
Defendants/Appellant Respondent
AND BETWEEN:
Michael James Murray and Matthew William Murray, Minors by their Litigation Guardian William Murray, Rosemary Murray and William Murray
Plaintiffs
and
Dr. Duncan L. MacRae, Dr. A. Toth, John Thomas, G. Lannigan, H.C. Loo and Victoria Hospital Corporation
Defendants/Appellant Respondent
Andrea Plumb and Jasmine Akbarali, for the appellant
Milena Protich, for the respondent
Heard: November 12, 2009
On appeal from the judgment of Justice Wolfram Tausendfreund of the Superior Court of Justice, dated October 8, 2008, with reasons reported at [2008] O.J. No. 3930.
INTRODUCTION
1In May 1995, Dr. Duncan MacRae, the appellant, discovered that two of his patients, on whom he had performed tympanoplasty surgery at the London Health Sciences Centre (the “Hospital”), had suffered profound hearing loss as a result. The cause was the use of a new antiseptic recently introduced by the Hospital. The Hospital accepted liability and settled with both patients. It then proceeded to trial, claiming that Dr. MacRae was also responsible, and seeking contribution and indemnity from him.
2The trial judge agreed, finding that Dr. MacRae was negligent in failing to inform himself that the new antiseptic could be ototoxic (i.e., could cause functional impairment to the ear). He held Dr. MacRae and the Hospital equally negligent.
3Dr. MacRae appeals from this judgment. For the reasons that follow, I would allow his appeal, and dismiss the Hospital’s claim for contribution and indemnity.
THE FACTS
4In April 1994, the Hospital set up the Topical Antiseptic Committee (the “TAC”) to standardize the topical antiseptic solutions used throughout the Hospital for purposes such as pre-operative skin preparation. While about 12 different solutions were used, the main one, called Savlon, was thought by some not to be sufficiently effective. A stronger and more effective solution, with the brand name Stanhexidine, was becoming commercially available.
5The active ingredient in both these antiseptic solutions, which ultimately caused the hearing loss in the two patients, was chlorhexidine. Its concentration in Savlon was 0.015 %. The chlorhexidine concentration in Stanhexidine was 2.0%, or about 130 times stronger than Savlon.
6The TAC consulted with the chief of surgery while conducting its review, believing incorrectly that he was responsible for and would know about all the surgery being done at the Hospital. It did not consult Dr. MacRae or anyone else from the otolaryngology department (“Otolaryngology”) at the Hospital and hence was unaware that Otolaryngology was using Savlon as the pre-operative antiseptic solution for tympanoplasty operations.
7The TAC ultimately recommended to the Hospital’s Medical Advisory Committee (the “MAC”) that the stronger antiseptic solution be accepted as the cutaneous antiseptic solution used throughout at the Hospital. Dr. MacRae, who was the chief of Otolaryngology, was a member of the MAC and was present at its meeting on November 10, 1994 when the change to Stanhexidine was approved. However, he understood that this was not applicable to his department and asked no questions about the proposed change. As of December 1994, the Hospital stopped using Savlon and substituted Stanhexidine.
8In surgery on January 17, 1995, Dr. MacRae noticed that the preparatory antiseptic solution was Stanhexidine instead of Savlon. He asked the otolaryngology charge nurse, Barry Wistow, about it. Mr. Wistow said that he had been told by the pharmacy department of the Hospital (“Pharmacy”) that Stanhexidine was the replacement for Savlon, and was the same as Savlon, something Mr. Wistow said he had also been told at a head nurses’ meeting.
9Dr. MacRae had used Savlon as the preparatory antiseptic solution in tympanoplasty surgery from the time of his residency training in the early 1970s until the Hospital policy change in December 1994. While he did not know its composition or that it contained chlorhexidine, he knew Savlon to be safe based on his experience and his use of it for over 20 years.
10There is no dispute that in March 1995 Dr. MacRae used Stanhexidine in both the tympanoplasty surgeries in this case, and that this caused the hearing loss suffered by both patients. His preparatory procedure was to place a cotton ball in the ear canal if there was a perforation, apply the preparatory antiseptic solution to the surrounding skin, draw off the excess solution, remove the cotton ball and suction out any remaining solution before proceeding with the operation.
11Dr. MacRae learned of the hearing loss of his patients on May 25, 1995. This was the first time any patient of his had sustained profound hearing loss after tympanoplasty surgery. Since there had been no surgical problem in either case, he called Pharmacy to ask if Stanhexidine could be the cause of the hearing loss. The manager of Pharmacy told him that Stanhexidine was not ototoxic, and that it was a different solution than Savlon and was a hundred times stronger.
12Dr. MacRae then immediately contacted Mr. Wistow, and told him to stop the use of Stanhexidine because he was concerned about a bad batch of the new solution.
13Given Dr. MacRae’s concern that the new antiseptic solution may have caused the harm in both cases, the manager of Pharmacy made further inquiries of a microbiologist in the Hospital’s department of Clinical Microbiology and Infection Control. Later that same day, the microbiologist, Dr. Zafar Hussain, called Dr. MacRae. As found by the trial judge, Dr. Hussain told Dr. MacRae that Stanhexidine was ototoxic and significantly stronger than Savlon, leading Dr. MacRae to realize for the first time that both antiseptic solutions contained chlorhexidine and that Stanhexidine was ototoxic.
14The trial in this matter followed the settlement reached between the Hospital and the two patients. It proceeded as a claim by the Hospital for contribution and indemnity from Dr. MacRae. Through the commendably professional work of counsel, much of the evidence went in as an agreed statement of facts. Only three witnesses were required viva voce: Dr. MacRae and an expert witness called by each party. As a result, the evidence took only three days to complete.
THE TRIAL JUDGMENT
15The trial judge set out the main issues as follows:
(A) Did Dr. MacRae breach the standard of care as of January 1995 by failing to make more inquiries regarding the properties of Stanhexidine prior to using it as a preparatory solution for ear surgery?
(B) Did Dr. MacRae breach the standard of care by failing to know that chlorhexidine was ototoxic?
(C) Did Dr. MacRae’s method of preparing the ear for tympanoplasty surgery breach the standard of care?
16On the third issue, the trial judge concluded that the manner in which Dr. MacRae prepared the ear for surgery met the standard of care in both operations. Both experts agreed that his method was entirely satisfactory, and his use of a cotton ball as a temporary barrier when using a chlorhexidine-based solution was appropriate.
17On the second issue, the trial judge concluded that there was no persuasive evidence to suggest that in 1995 the otolaryngology community was aware of the ototoxicity of chlorhexidine as a preparatory antiseptic solution for ear surgeries. Dr. MacRae’s failure to know that chlorhexidine was ototoxic was therefore not a breach of the standard of care. What the trial judge ultimately focused on was not Dr. MacRae’s failure to know but his failure to make further inquiries.
18As stated by the trial judge, the first issue was whether Dr. MacRae breached the standard of care by failing to make more inquiries regarding the properties of Stanhexidine prior to using it as a preparatory solution for ear surgery.
19The trial judge ultimately found that Dr. MacRae was negligent in not making sufficient inquiries and that this was a cause of the harm suffered by the two patients. Since there is no dispute that their hearing loss was due to the ototoxicity of chlorhexidine in the preparatory antiseptic solution used, it is clear that the trial judge must have concluded that further inquiries would have informed Dr. MacRae of the ototoxicity of chlorhexidine and therefore allowed him to avoid the harm that resulted. Otherwise the failure to make further inquiries would not have been a cause of the harm suffered by the two patients. Reflecting this line of reasoning, the trial judge made a finding of fact that a call to Pharmacy after January 17, 1995 would have provided Dr. MacRae with information that chlorhexidine in higher concentrations could be ototoxic. The trial judge found that this information should have led Dr. MacRae to further inquire if the 2% chlorhexidine concentration in Stanhexidine was safe or ototoxic, and presumably, this would have resulted in Dr. MacRae learning that chlorhexidine was in fact ototoxic. However the trail judge’s focus was on whether Dr. MacRae made sufficient inquiries, rather than on the results these inquiries might have yielded.
20He first held that Dr. MacRae was negligent in failing to inquire at the MAC meeting on November 10, 1994 whether the proposed change from Savlon to Stanhexidine included his own department, since that information would have given Dr. MacRae the opportunity to make further inquiries regarding the composition of Stanhexidine.
21The trial judge then turned to Dr. MacRae’s reliance on the information provided to him by Mr. Wistow on January 17, 1995. The trial judge accepted the evidence of the Hospital’s expert, Dr. John Rutka, that this reliance fell below the applicable standard of care, and that Dr. MacRae should have verified that information before relying on it in further surgeries.
22Finally, the trial judge accepted Dr. Rutka’s opinion that the standard of care required Dr. MacRae to know the composition of the new solution he was using. The trial judge found that the minimum research that would then have been expected of Dr. MacRae was to identify the composition of Savlon. This would have revealed that the concentration of chlorhexidine in Stanhexidine was 130 times greater than in Savlon, and that this should have led Dr. MacRae to undertake further research, presumably ultimately disclosing that chlorhexidine was ototoxic.
23Based on these failures, the trial judge concluded that Dr. MacRae’s conduct fell below the applicable standard of care, and that this negligence, equally with that of the Hospital, caused the hearing loss of the two patients. Dr. MacRae was therefore ordered to make contribution to the Hospital of one half of the settlement it had paid to both patients.
ANALYSIS
24The appellant raises three challenges to the trial judge’s findings against him:
(a) The trial judge erred in concluding that he was negligent in failing to inquire at the MAC meeting on November 10, 1994, whether the proposed change from Savlon to Stanhexidine included his own department;
(b) The trial judge erred in concluding that he breached the standard of care by relying on the information provided to him by Mr. Wistow on January 17, 1995, when he continued to use Stanhexidine in the tympanoplasty operations in question; and
(c) The trial judge’s finding that if Dr. MacRae had contacted Pharmacy after January 17, 1995, he would have been advised that chlorhexidine in higher concentrations could be ototoxic constitutes a palpable and overriding error.
25I agree with the appellant that the trial judge’s finding of negligence based on Dr. MacRae’s failure to inquire at the MAC meeting cannot stand. The Hospital did not advance this position at trial, nor attempt to defend it on appeal. It simply argued that the MAC meeting was another opportunity for Dr. MacRae to make inquiries, of which he failed to take advantage. The Hospital did not argue that his failure to inquire at that meeting was itself negligent. No evidence was led at trial suggesting that Dr. MacRae breached the standard of care required of him by failing to inquire at the meeting. Moreover, s. 13(1) of the Public Hospital Act, R.S.O. 1990, c. P.40 protects him from liability for acts done in good faith as a member of the MAC. This finding of negligence must be set aside.
26In dealing with Dr. MacRae’s reliance on the information provided by Mr. Wistow on January 17, 1995, the trial judge relied on the standard of care testified to by the Hospital’s expert Dr. Rutka. He opined that Dr. MacRae could not content himself with Mr. Wistow’s information, but was obliged to verify the information by looking it up in the Compendium of Pharmaceuticals and Specialties (the “CPS”), which is the standard Canadian drug reference book, or by calling Pharmacy.
27Since, as the trial judge properly found, there was no evidence that his fellow specialists were aware of the ototoxicity of chlorhexidine, the standard of care proposed by Dr. Rutka would require Dr. MacRae to seek and acquire information beyond that which the otolaryngology community was shown to have. Whether it can therefore constitute the proper standard of care in the circumstances of this case need not be decided, because I agree with the appellant that Dr. MacRae was in compliance with it in any event when he relied on the information from Mr. Wistow.
28Mr. Wistow did nothing more on January 17, 1995 than relay information from Pharmacy about the new solution. Mr. Wistow was not giving Dr. MacRae his own opinion about Stanhexidine, but was simply serving as the messenger to communicate Pharmacy’s view about Stanhexidine and its equivalence to Savlon. Mr. Wistow was the otolaryngology charge nurse. Dr. MacRae had worked with him for 16 years, and never had any reason to question or doubt what he said. Dr. MacRae was entitled to treat what Mr. Wistow told him as information coming from Pharmacy. In a real sense therefore, Dr. MacRae did obtain from the Pharmacy department on January 17, 1995 their information about the new solution he used in the two operations in March 1995. This met the standard of care described by Dr. Rutka and adopted by the trial judge. Dr. MacRae could properly proceed with the two tympanoplasty operations in March on the basis that Pharmacy believed Stanhexidine was equivalent to Savlon.
29The appellant’s third argument addresses the trial judge’s conclusion that not only could Dr. MacRae not rely on the information from Mr. Wistow, but he was bound to inquire further about the composition of Stanhexidine. The trial judge found that an inquiry of Pharmacy after January 17, 1995 would have provided Dr. MacRae with the information that chlorhexidine in higher concentrations could be ototoxic and that this should have led to further questions, presumably revealing ultimately that Stanhexidine was ototoxic. The appellant says that this finding constitutes palpable and overriding error.
30I agree. As of January 17, 1995, Pharmacy viewed Stanhexidine as equivalent to Savlon, which Dr. MacRae knew to be safe, not ototoxic. On May 25, 1995, when Dr. MacRae inquired from Pharmacy about Stanhexidine, the response was that it was not ototoxic. Neither of these facts permit the inference that in March 1995, prior to the two operations that caused the harm, Pharmacy would have informed Dr. MacRae that chlorhexidine in higher concentrations could be ototoxic.
31It is true that in light of Dr. MacRae’s concern that Stanhexidine may have caused the harm in the two operations, Pharmacy made a further inquiry of a microbiologist at the Hospital on May 25, 1995 that resulted in information being conveyed to Dr. MacRae that Stanhexidine was ototoxic. However, that happened in the context of the attempt to explain the harm suffered by the two patients. It is simply not reasonable to infer from this that the same chain of events would have occurred had Dr. MacRae contacted Pharmacy prior to the two operations, before any harm had been suffered. Nor could Pharmacy have found that chlorhexidine in higher concentrations could be ototoxic by consulting the CPS, which said nothing at that time about chlorhexidine being possibly ototoxic. Finally, as the trial judge found, the two available studies in the literature at that time on the ototoxicity of chlorhexidine were neither unequivocal nor conclusive.
32In summary, there was no evidence from which a reasonable inference could be drawn that had Dr. MacRae called Pharmacy after January 17, 1995, and before the surgery was performed, he would have been informed that chlorhexidine in higher concentrations could be ototoxic, or that further research would have led Dr. MacRae to the conclusion that chlorhexidine was in fact ototoxic. Hence, even if Dr. MacRae was obliged to make further inquiries, there is no basis to find that this would have produced information that chlorhexidine in higher concentrations could be ototoxic or was in fact ototoxic.
33In the result, I conclude that there is no basis on which to find Dr. MacRae negligent in this case. The appeal must be allowed and the Hospital’s claim for contribution and indemnity must be dismissed.
34The appellant is entitled to his costs of the appeal, fixed on a partial indemnity basis in the amount of $20,000 inclusive of disbursements and GST. The appellant is also entitled to his costs of the trial as assessed.
RELEASED: February 2, 2010 (“S.T.G.”)
“S.T. Goudge J.A.”
“I agree. J.C. MacPherson J.A.”
“I agree. R.A. Blair J.A.”